222 Mass. 22 | Mass. | 1915
We assume on the record that the tree in question is a shade tree belonging to the plaintiff, whose premises abut on the public way where the tree stands. The authority of the board of public works to order its removal is derived from the St. of 1896, c. 438, which is the revised charter of the city of Holyoke. By § 37, “The board of public works shall have cognizance, direction and control : (a) Of the construction, location, repair, care and lighting of streets, ways and sidewalks; (b) of the construction, alteration, repair and care of public buildings; (c) of the construction, alteration, repair and care of main drains or common sewers; (d) of the construction, alteration, repair, care and maintenance of public bridges; (e) of the care, superintendence and management of the public grounds, except public parks, belonging to said city, and of the shade and ornamental trees growing therein. The said board may require that no person or
While the word “care” means ordinary and not specific repairs, Simpson v. North Adams, 174 Mass. 450, and a tree standing within the location never has been recognized as forming part of the construction of the highway, Chase v. Lowell, 149 Mass. 85, and Wright v. Chelsea, 207 Mass. 460, (where the various enactments concerning the preservation and removal of shade trees before St. of 1915, c. 145, are collected and reviewed,) the board is also given the powers of road commissioners. By the St. of 1893, c. 423, § 23, in force when the charter was adopted, road commissioners in all matters concerning streets, ways, bridges, monuments at the terminations and angles of roads, guide posts, sidewalks and shade trees were given the powers of selectmen and surveyors of highways. McManus v. Weston, 164 Mass. 263. And by the St. of 1885, c. 123, § 2, which is applicable to cities as well as towns, a tree within the public ways could not be cut down or removed except by “The officer appointed to have the care of the trees” when ordered by vote of the mayor and aldermen, selectmen or road commissioners, passed after public notice and hearing. The St. of 1885, c. 123, § 2, and St. of 1893, c. 423, § 23, were codified in B. L. c. 51, § 10, and c. 25, § 83. The material language used in this section of the charter had been interpreted in McManus v. Weston, 164 Mass. 263, 266, and Simpson v. North Adams, 174 Mass. 450, and unless qualified it should have the effect given by the court.
The words “except as herein otherwise provided” do ,not curtail the powers conferred, as the other provisions of the charter do not reserve to the executive or legislative departments any control over the care or removal of trees in the highways of the city. The board of public works, therefore, had all the powers of road commissioners as if such powers had been specifically enumerated, unless the St. of 1915, c. 145, entitled “An Act to
The legislation concerning public shade trees has been enacted from time to time not merely to satisfy the desire of cities and towns for the conservation in their thoroughfares of shade and ornamental trees, in many instances a legacy from the past or the gift of public spirited citizens, but for the benefit and enjoyment of all the inhabitants of the Commonwealth having occasion to use the public ways. The St. of 1915, c. 145, pursuant to this long established policy is applicable to the municipality of Holyoke which is not in terms excepted from its provisions. Logan v. Mayor & Aldermen of Lawrence, 201 Mass. 506, 511. It does not abridge but enlarges the powers of the board contained in the charter. The important change is that by § 5 public notice and a hearing are no longer required before an order for removal can be passed, if the conditions named therein exist. The board, as was found by the trial court, having determined that the tree “obstructs, endangers, hinders and incommodes ” persons travel-ling on the highway, the order issued to the city forester for its demolition or removal was warranted, even if the plaintiff had not been notified or given an opportunity to be heard. St. 1910, c. 363, § 1. St. 1915, c. 145, § 1.
The decree granting injunctive relief must be reversed, and a decree is to be entered dismissing the bill with costs.
Ordered accordingly.